75 P. 1037 | Kan. | 1904
The opinion of the court was delivered by
This was a proceeding to determine who was entitled to the office of city attorney of Junction City. Thomas Dever had been duly chosen and held the office for several years prior to April, 1908, when he applied to. the mayor and council of the city for reappointment, claiming the benefits of
The plaintiff’s term of office had expired, and the duty to appoint his successor devolved upon the mayor. The defendant, who was conceded to be eligible and qualified for the office, was appointed, and if that appointment is not invalid, the judgment of the trial court must stand. The correctness of the rulings and the validity of the judgment depend upon the constitutionality and the construction of the ^veterans’ preference law,” sections 6509 to 6512, General Statutes of 1901. In Goodrich v. Mitchell, post, page 765, 75 Pac. 1034, the constitutionality of the statute was considered, and it was held to be valid.
Plaintiff contends that an ex-soldier or sailor of good reputation who can perform the duties of the office is
“In grateful recognition of the services, sacrifices and sufferings of persons who served in the army and navy of the United States in the war of the rebellion and have been honorably discharged therefrom, they shall be preferred for appointment and employment to positions in every public department, and upon all public works of the state of Kansas, and of the cities and towns of this state, over other persons of equal qualifications, and the persons thus preferred shall not be disqualified from holding any position in said service on account of his age nor by reason of any physical disability, provided, such age or such disability does not render him incompetent to perform the duties of the position applied for.” (Ch. 160, §1, Laws 1886.)
In 1901 the section was reenacted, and at the end thereof the following was added :
“And when any such ex-soldier or sailor shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, before appointing any one to such position, make an investigation as to the qualifications of said ex-soldier or sailor for such employment, and if he is a man of good reputation and can perform the duties of said position so applied for by him, said officer, board or person shall appoint said ex-soldier oí sailor to such position, place, or employment.”
The different clauses under consideration, including
“When a vacancy occurs in the office of city attorney, and an ex-soldier applies for the position, it then becomes the duty of the mayor to make an investigation as to the qualifications of such ex-soldier for the position of city attorney, and if such applicant is found to possess qualifications equal to or superior to other available applicants for the place, and is a man of good reputation, and is not disqualified on account of any physical disability or on account of age to perform the duties of this particular office, then it becomes the duty of the mayor, under his official oath, to appoint such ex-soldier applicant to the place. Any other construction to be placed upon the statute would have the tendency to lessen the efficiency of the public service. A law would certainly be against public policy that would require anything less than the best available qualifications in public officials.”
The duty of investigating and determining as to the
In Keim v. United States, 177 U. S. 290, there was brought before the supreme court of the United States the action of the pension commissioner in dismissing a clerk who had been honorably discharged from the military service by reason of disability received in it. He was discharged because of a decision by the commissioner that his rating was inefficient. He claimed to be'competent and appealed to the courts. It was held, however, that an appointment to office involves the exercise of judgment; that the appointing power must determine the fitness of the applicant, whether he is qualified to discharge the public duties' required of the officer, and that the courts cannot interfere to direct or control the power and judgment thus vested. (Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559 ; United
The plaintiff insists that an unjust measure of qualifications was applied by the mayor. The character and extent of the investigation are not prescribed by the statute. The appointing power is expected to investigate in good faith, fairly to consider the qualifications, and honestly to determine the question submitted for decision. We discover nothing in the evidence or findings which impeaches the good faith of the mayor or would justify the court in treating the decision or the appointment as nullities. Neither do we find any irregularity in the appointment of the defendant.
The judgment of the district court will be affirmed.